By Samuel López | USA Herald

The Ninth Circuit has vacated a sweeping preliminary injunction governing how Oregon houses transgender prisoners, concluding that the district court relied on unsupported assumptions, outdated statistics and an improperly certified statewide class.

The September 17 decision in S.D. v. Reese, Ninth Circuit No. 26-4872, reverses for now an order requiring the Oregon Department of Corrections to conduct individualized housing reviews beginning with a presumption that transgender inmates should be placed in facilities consistent with their gender identity unless officials could document a security reason for another placement. The injunction also imposed requirements involving showers, searches, sexual-abuse reporting and mental-health services. 

That distinction matters. The appellate court did not hold that transgender women can never be housed in Oregon’s women’s prison. Instead, the panel found that the evidentiary record did not justify forcing the state to begin every housing decision with the district court’s gender-identity presumption.

Writing for the three-judge panel, Judge Eric Tung said the lower court clearly erred in finding that Oregon used a “default presumption” of housing transgender women in men’s institutions. According to evidence submitted by the state, Oregon uses a committee process that considers medical and mental-health history, self-identification, institutional behavior, and the safety of the inmate, other prisoners and staff. The Ninth Circuit said each placement was described as individualized and decided case by case. 

The numbers became central. At the time of the evidence cited by the court, Oregon reported 117 transgender women in its prisons. Twenty-six had requested placement at Coffee Creek Correctional Facility, the state’s women’s prison, and eight were housed there. The appellate panel rejected the district court’s inference that because more than 90% were housed in men’s facilities, Oregon must have been operating under a categorical placement policy. 

The opinion also focused heavily on plaintiff J.F. Oregon had denied J.F.’s requested transfer based on the inmate’s conviction for a sexual offense against a disabled woman. Court records described an assault in which an approximately 11-inch plastic object was inserted into the victim through her vagina, causing potentially fatal injuries requiring surgery. The panel cited that history while concluding the district court’s order could interfere with legitimate prison-security decisions. 

Another major problem involved proof of risk. The district court had relied partly on federal statistics concerning sexual victimization of transgender prisoners. The Ninth Circuit said those figures came from data collected in 2007, 2008-09 and 2011-12 — not through 2021 as the lower court had described — and represented national data rather than conditions specifically within Oregon’s prison system. 

The panel also dismantled the class action. Federal Rule of Civil Procedure 23 requires common questions capable of class-wide resolution. Here, the judges found materially different histories, risks and housing decisions among individual inmates. The court ordered the class decertified and directed that its mandate issue immediately. 

The ruling therefore has limits. It vacates preliminary, class-wide relief; it does not finally decide every Eighth Amendment claim brought by individual inmates. Courthouse News reported that the case can continue in the district court after remand. 

The opinion’s language generated a separate dispute. Tung repeatedly placed “transgender” in quotation marks and described transgender women as “male inmates who claim to be female.” Oregon Department of Justice spokesperson Jenny Hansson said the state agreed with the outcome and its core legal reasoning but “strongly disagree[d] with the court’s harmful language,” adding that it did not reflect Oregon’s brief or values. The panel consisted of Judges Daniel Collins, Lawrence VanDyke and Tung, all appointed by President Donald Trump. 

Legally, the decision is significant less because it dictates where any particular transgender prisoner must live than because it reinforces two familiar limits on federal judicial power: mandatory preliminary injunctions require strong evidence, and class-wide remedies require proof of genuinely class-wide injury. The Ninth Circuit’s bottom line was explicit — the injunction was vacated, the class decertified, and the case returned to the district court. 

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